Instituting a claim against the RAF: the role of a legal practitioner
The Road Accident Fund (“RAF”) is a statutory body with its main object of providing cover to all persons for any loss or damage suffered due to death or bodily injury caused by the negligent driving of motor vehicles within the borders of South Africa. As a statutory body the RAF is regulated by legislation, namely the Road Accident Fund Act 56 of 1996 (“The Act”), containing strict statutory rules and requirements for instituting a claim. Claiming from the RAF can be a daunting and complicated experience for most individuals of the public. But with the assistance of a personal injury lawyer, it does not have to be.
Who may institute a claim against the RAF?
According to The Act, the RAF shall be obliged to compensate any individual for any loss which he/she has suffered as a result of any bodily injury to him-/ herself or the death of or any bodily injury to any other person, caused by or arising from the negligent driving of a motor vehicle by another person. It is very important to be cognisant of the fact that the RAF’s liability is fault based. This means that where the accident was caused due to your own negligence, the RAF will not be obliged to provide you with compensation.
A personal injury lawyer will be able to assist you in determining the reasonable chance of success of your claim by assessing your circumstances and comparing same with his/ her experience with the RAF in past claims.
What can I claim from the RAF?
There are two main types of damages which can, in certain circumstances, be recovered from the RAF: general damages and special damages.
Special damages represent actual financial loss and include past and/or future medical expenses, past and/or future loss of income and loss of support. General damages, however, are not readily ascertainable and require a much more complex procedure to ascertain. According to the Act a claim for general damages will only be awarded where the individual has suffered ‘serious injury’. To prove a “serious injury” regulation 3 prescribes that there must be a Whole Person Impairment (WPI) established using the 6th Edition of The American Medical Association’s Guide (AMA) to the Evaluation of Permanent Impairment which indicates at least a 30% WPI. Alternatively, if the AMA assessment renders a WPI of less than 30%, the claimant may choose to comply with the narrative test.
The reality is that the RAF representatives don’t always possess the necessary knowledge and expertise on medical issues or the law. This means that many complainants lose out on compensation due to prescription, the unfair rejection of a claim or undercompensating. A personal injury lawyer will ensure that a fair compensation is paid out to the complainant.
How to institute a claim against the RAF
The first step in instituting a claim against the RAF is to gather all necessary and required documentation. The Act provides strict requirements indicating which documents should be filed with the RAF for a claim to be processed.
These documents are, amongst others, the following: RAF 1, RAF 3 and RAF 4. Further documentation required will include supporting documentation such as hospital records, police records and accident reports, personal details of the complainant, witness statements and proof of financial expenditures.
Upon receipt of all required documentation, RAF will investigate the claim and either offer a settlement or you will have to issue summons and go to court.
As discussed above, the RAF is regulated by strict legislation with regards to the institution of a claim. A personal injury lawyer will request all necessary supporting documents and complete all relevant lodgement documents on your behalf. This will save time by ensuring that all required documents are properly and timeously lodged with the RAF.
It is not mandatory for a person to appoint a lawyer to assist with instituting a claim against the RAF, however it is most certainly advisable. Most lawyers will assist with RAF matters on a contingency fee basis. This means that legal costs will not be payable unless the claim is successful. And even then, the lawyer will only be allowed to take a maximum of 25% of the compensation amount awarded to the claimant.
Article by Erika Oosthuizen – Candidate Attorney